Looking for a skilled attorney to act as executor for a will. Will has high chance for litigation risk.

Asked over 3 years ago - Redmond, WA

Grandfather is terminal (3-6 months), and wants to will 1/2 of his Home (paid in full) to his two grandchildren (not his wife or her litigious daughter-in-law). He does not have time to get a divorce, despite one being fully warranted. A separate attorney is drafting the will, but can't execute due to Conflict of Interest. As one of the beneficiaries, we are looking for a means for him to appoint a Lawyer to manage the will's execution (either as executor or co-executor), defend against legal challenge, and provide advice and risk mitigation tactics to the beneficiaries. We are looking for a way for our grandfather to have his wishes fulfilled, without making our lives very expensive, complicated, and messy. Will will be executed in WA State, and we need a lawyer who we can trust!

Attorney answers (3)

  1. James Brian Thomas

    Contributor Level 14

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    Answered . I'm sorry for your situation, but be very careful what you wish for. First, I'm not tremendously excited about the idea of beneficiaries scouting out potential executors. This is a decision that your grandfather needs to make. It is, after all, his Will.

    Second, advertising the high chance for litigation is probably not something you want to lead with. Be honest with the person that is ultimately nominated by the Will, but let's at least hope that the estate can be managed without resorting to litigation.

    Third, when an executor is appointed by the Court, they are obligated to defend the Will from legal challenge. Smart executors hire an attorney, even if they are one themselves.

    Moreover, any executor/attorney willing to provide advice or risk mitigation tactics (I have no idea what this means to you) to the beneficiaries is begging for a grievance, malpractice suit or worse. The executor represents the executor. Their function is to gather assets, handle debts, pursue/defend claims and distribute what's left in accordance with the Will. They are not bound by any beneficiary's goals or plans. If you're a potential beneficiary, this is not your lawyer.

    I realize that you want to find a responsible person to fill this role, and I can't help but be a little bit flattered that an attorney fits that description to you. However, I'm not sure this is the best method for finding that person. Your grandfather needs to discuss the issue with the attorney preparing his Will. Your grandfather needs to know what happens if he does not nominate an executor. Perhaps your grandfather might discuss with his attorney whether or not the Court could appoint someone of the Court's choosing to serve in the capacity. Best of luck.

    This answer does not constitute legal advice. I am admitted to practice law in the State of Texas only, and make... more
  2. Jamie Corrine Clausen

    Contributor Level 8

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    Answered . I would recommend that your grandfather look for an individual to serve as his executor who is responsible, organized, has good judgment and who he trusts to look after the interests of the beneficiaries. That could be a friend, family member (including beneficiary or beneficiaries), or bonded and insured professional fiduciary. It is important that he make sure that this individual not have any criminal convictions that would preclude his or her appointment.

    I would not necessarily recommend that he seek an attorney. If this will does become the subject of litigation, the expenses of that litigation may significantly reduce the value of the estate. Attorneys working as executors often need to hire their own attorney if litigation begins because they need to be able to act as a witness. Having two attorneys billing for their time is a very expensive option.

    I would also recommend that to reduce the chances of litigation he consider making sure that he gets truly independent legal advice from his own attorney without the beneficiaries being present or otherwise involved. He should also consult with that attorney on ways that he can best document his own capacity and free will. Options might include preparing an affidavit, discussing his plans with an disinterested friend who could later act as a witness, or video taping himself discussing his plans. His attorney can best discuss the pros and cons of each of these approaches with him.

    He might also consider some other options such as giving a gift to his wife or her children in his will and including a no contest clause so they have motive not to engage in litigation. (In my experience such a gift needs to be somewhat significant. I have never had a beneficiary forgo litigation because they were left $1.)

    He might even consider discussing this with his wife or her children now or writing them a letter that explains his reasons for leaving such a will in as loving a way possible and asking them to honor his memory by not bringing litigation. He would know his wife best and have the best sense of whether this would be effective or not but I have found that it can be.

    If your grandfather chooses to name you as executor (and it is HIS choice and his choice alone), it is appropriate for you to begin your own search for an attorney to represent you as executor and it should be someone other than the attorney who wrote the will, who may need to act as a witness for questions regarding testamentary capacity or undue influence.

    In looking for such an attorney I would recommend that you find someone who has experience handling will challenges in Washington State. These are relatively uncommon and many good probate attorneys have never had to deal with one. I would also recommend that you find one who is familiar with the TEDRA dispute resolution process and committed to using alternative dispute resolution to settle any claims in necessary. The probate process in Washington is designed to actively encourage parties to settle disputes outside of court. Such settlements are almost always less expensive and better for the beneficiaries and should be pursued as actively as possible.

  3. Eliz C A Johnson

    Contributor Level 17

    Answered . How is title to the house held? I do not practice in WA but in CA, if it is community property, you may get one result and if it is JTWROS, he cannot leave his half to anyone based on the deed. It is the FIRST thing to consider in a long line of considerations. Is "wife" not grandma? Second wife? Best to you all. It will not be a pretty road.

    If you liked this answer, click on the thumbs up! Thanks. Eliz. C. A. Johnson Post Office Box 8 Danville,... more

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